Legal Dilemmas and Regime-Building in the East Asia Maritime Conflicts Xu, Qi
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Xu, Q. (2019). Legal Dilemmas and Regime-Building in the East Asia Maritime Conflicts: From the Third State Perspective. Rijksuniversiteit Groningen.
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Chapter 2
Reflections on the Evolution of “the Monetary Gold Principle” and
Its Application in International Adjudication
2.1 Introduction
In the previous chapter, some preliminary observations concerning the Monetary Gold principle in the general framework of international law were presented. Chapter two provides a more specific examination concerning the definition and applicable scope of the Monetary Gold principle. Notably, the formation of this principle constitutes an evolutionary process. In other words, it has not been confined to the Monetary Gold case on the responsibility of a third party, but is applied by international courts and tribunals by extension so as to identify the real subject matter in a mixed legal dispute.
55
Overall, as Maarten Den Heijer observes, the Monetary Gold principle “has been identified as a prominent procedural hurdle for multilateral dispute settlement”. 56
According to the procedural rules of an international court or tribunal, as asserted by Filippo Fontanelli, international case law demonstrates that the Monetary Gold principle “appears to affect, at the same time, its jurisdiction and the claim’s admissibility both”.
57
This chapter will elaborate jurisprudence relating to the Monetary Gold principle and the principle’s application in the settlement of a mixed dispute. The chapter consists of
55
It should be pointed out that there are various definitions of “a mixed dispute” in public international law. The notion of a mixed dispute varies under different categories of cases. In recent years, the concept of a mixed dispute and the issue of resolving a mixed dispute have been discussed incrementally in the United Nations Convention on the Law of the Sea (UNCLOS), underscoring a dispute involving land territorial sovereignty and maritime delimitation. In the thesis here, one may generalize the definition of a mixed dispute that implicates a pending dispute submitted before a court or tribunal and a real dispute incidental to the submitted dispute. For relevant literature, see Peter Tzeng, “The Implicated Issue Problem: Indispensable Issues and Incidental Jurisdiction,” New York University Journal of International Law and Politics 50, Issue 2 (2018): 491-2. Peter Tzeng, “Investments on Disputed Territory: Indispensable Parties and Indispensable Issues,” Revista de Direito Internacional 14, no. 2 (2017): 131. Wensheng Qu, “The Issue of Jurisdiction Over Mixed Disputes in the Chagos Marine Protection Area Arbitration and Beyond,” Ocean Development & International Law 47, Issue 1 (2016): 40-51. Sienho Yee, “The South China Sea Arbitration (The Philippines v. China): Potential Jurisdictional Obstacles or Objections,” Chinese Journal of International Law 13, Issue 4 (2014): 689-90, 694. Xinjun Zhang, “Mixed Disputes and the Jurisdictional Puzzle in Two Pending Cases: Mauritius v. U.K. and the Philippines v. China,” Journal of East Asia and International Law 7, Issue 2 (2014) 529-36. Alan E. Boyle, “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and Jurisdiction,” The International and Comparative Law Quarterly 46, Issue 1 (1997): 44.
56
Maarten Den Heijer, “Procedural Aspects of Shared Responsibility in the European Court of Human Rights,” Journal of International Dispute Settlement 4, Issue 2 (2013): 373. For similar comments, also see: Natalie S Klein, “Multilateral Disputes and the Doctrine of Necessary Parties in the East Timor Case,” Yale Journal of International Law 21, Issue 2 (1996): 305, 315.
57
Filipo Fontanelli, Jurisdiction and Admissibility in Investment Arbitration: The Practice and the Theory (Leiden, Netherlands: Brill Nijhoff, 2018), 120.
five parts. First, it will introduce the Monetary Gold case and preliminarily outline the Monetary Gold principle. Second, in terms of subsequent judicial practice, it will present requirements for applying the Monetary Gold principle and analyze the role of this principle in the exercise of the jurisdiction of a court or tribunal as well as the admissibility of claims from parties to the case. Third, it will shift to jurisdictional and MA in the SCS Arbitration as a typical case and examine how the Arbitral Tribunal (the Tribunal) identified the real subject matter of the case and addressed the presence of third parties in this controversial dispute. Fourth, there will be an examination of the impact of the MA on two principal parties and third States in the SCS. Last but not the least, there will be some concluding remarks on the applicability of the Monetary Gold principle under international law.
2.2 Reflections on the Monetary Gold case and a preliminary outline of the Monetary Gold principle
With regard to the Monetary Gold principle, academia has adopted different connotations. This principle is interchangeably proclaimed as “the indispensable third party principle (rule or doctrine)” or “indispensable parties doctrine (principle or rule)”.58
Shabtai Rosenne alludes to this principle as “the concept of essential parties”, while Natalie Klein calls it “the doctrine of necessary parties”.59
Moreover, Sir Elihu Lauterpacht takes a bit broader of a title and refers to “the problem of ‘the recalcitrant third party’”.60 Indeed, these alternative illustrations tilt toward highlighting the “indispensable” role of third-party States in the adjudicative process, in relation to the continuance of a pending proceeding.
58
Farid Ahmadov, The Right of Actio Popularis before International Court and Tribunals (Leiden, Netherlands: Brill Nijhoff, 2018), 138. Filippo Fontanelli, “Reflections on the Indispensable Party Principle in the Wake of the Judgment on Preliminary Objections in the Norstar Case,” Rivista di Diritto Internazionale 100, Issue 1 (2017): 113. J. G. Merrills, International Dispute Settlement, 6th ed. (Cambridge, United Kingdom: Cambridge University Press, 2017), 131. Serena Forlati, The International Court of Justice: An Arbitral Tribunal or a Judicial Body? (Cham, Switzerland: Springer, 2014), 144. Christine Chinkin, “Article 62,” in The Statute of the International Court of Justice: A Commentary, ed. Andreas Zimmermann, et al (eds), (Oxford, United Kingdom: Oxford University Press, 2012), 1536. Fernando Lusa Bordin, “Procedural Developments at the International Court of Justice,” The Law & Practice of International Courts and Tribunals: A Practitioners’ Journal 16, Issue 2 (2012): 332. Orakhelashvili, “The Competence of the International Court of Justice,” 382. Jörg Kammerhofer and André de Hoogh, “All Things to All People? The International Court of Justice and its Commentators,” European Journal of International Law 18, Issue 5 (2007): 975. Santiago Torres Bernárdez, “The New Theory of ‘Indispensable Parties’ under the Statute of the International Court of Justice,” in International Law: Theory and Practice: Essays in Honour of Eric Suy, ed. Karel Wellens (Hague, Netherlands: Martinus Nijhoff, 1998), 737. Neri Sybesma-Knol, “The Indispensable Parties Rule in the East Timor Case,” in Reflections on International Law from the Low Countries: In Honour of Paul de Waart, ed. Erik Denters and Nico Schrijver (Hague, Netherlands: Martinus Nijhoff, 1998), 450. John Collier and Vaughan Lowe, The Settlement of Disputes in International Law: Institutions and Procedures (Oxford, United Kingdom: Oxford University Press, 1999), 161. Christin Chinkin, Third Parties in International Law, (Oxford, United Kingdom: Oxford University Press, 1993), 198-212.
59
Shabtai Rosenne, The Law and Practice of The International Court, 1920-2005 (Leiden, Netherlands: Brill Nijhoff, 2006), 539-47. Natalie S. Klein, “Multilateral Disputes and the Doctrine of Necessary Parties,” 308.
60
Elihu Lauterpacht, “Principles of Procedure in International Litigation,” in Collected Courses of the Hague Academy of International Law 345 (Leiden, Netherlands: Brill Nijhoff, 2009), 461, 465-70.
2.2.1 A brief overview of the ICJ’s case law potentially involving absent third States before the Monetary Gold case
In a multipolar and interdependent world, as stated by Lori Fisler Damrosch, “it is increasingly unlikely that any particular dispute will be strictly bilateral in character”.61 This section highlights how the rights and interests of third States may be implicated to some extent in international litigation. Before the Monetary Gold case, the Permanent Court of International Justice (PCIJ) and the ICJ addressed some cases where other parties were involved. As James Crawford observes, “an early example in which the consent principle was used as a bar to proceedings in order to protect absent third parties was Status of Eastern Carelia, but this was an advisory opinion”.62 In the Corfu Channel case, the Court found that Former Yugoslavia’s absence as a third State led its documents submitted before the Court “only to be admitted as evidence”.63
The Court eventually did not make observations on Former Yugoslavia’s evidentiary role, but still upheld Albania’s international responsibility without determining FY’s responsibility.64
In the Anglo-Iranian Oil Co case, since the Iranian declaration of accepting the Court’s compulsory jurisdiction was made after Iran concluded treaties with some States other than the United Kingdom (UK) concerning the most-favored-nation clause, the Court considered the UK was not “entitled to invoke these treaties” for the same treatment from the respondent.65 In the Ambatielos case, the Court merely dealt with a treaty between Greece and the UK, without responding to Greece’s request for the same undertakings from other States in treaties similar to those of the UK.66 In short, the presence of absent third States does not produce an adverse impact on the competence of the Court—in other words, such States were not “indispensable” to the dispute settlement before the Court. Just as James Crawford asserts, “in such cases, the Court has generally proved reluctant to make decisions that would involve directly pronouncing on the legal position of absent third parties, on the basis that they have not consented to the jurisdiction of the Court”. 67
61
Lori Fisler Damrosch, “Multilateral Disputes,” in The International Court of Justice at a Crossroads, ed. Lori F. Damrosch (New York, United States of America: Transnational Publishers, 1987), 376.
62
Crawford, State Responsibility, 655. Status of Eastern Carelia, Advisory Opinion, Ser B, No. 5, 27-9 (PCIJ. 1923). The PCIJ asserted that “there has been some discussion as to whether questions for an advisory opinion, if they relate to matters which form the subject of a pending dispute between nations, should be put to the Court without the consent of the parties, it is unnecessary in the present case to deal with this topic”. The primary reason was that the Soviet Union was not a member of the League of Nations. Since the PCIJ merely owned its jurisdiction ratione personae over member States, the exercise of its jurisdiction over this case involving a non-party State was evidently barred.
63
The Corfu Channel Case, United Kingdom v. Albania, I.C.J. Rep 4, 17 (ICJ. 1949).
64
United Kingdom v. Albania, at 17. The Court finally found it unnecessary to express an opinion on their probative value.
65
Anglo-Iranian Oil Co Case, United Kingdom v. Iran, I.C.J. Rep 93, 108-10 (ICJ. 1952).
66
Ambatielos Case, Greece v. United Kingdom, I.C.J. Rep 10, 21-2 (ICJ. 1953).
67
2.2.2 The Monetary Gold case: An issue of jurisdiction and admissibility relating to absent third States
This section will first briefly introduce the Monetary Gold case. Second, it will make some remarks on the basis of the Court’s examination of its jurisdiction and admissibility of Italy’s claim.
2.2.2.1 A summary of the Monetary Gold case
In 1943, Germany “looted and removed the monetary gold from Rome in Italy to Germany”.68
In 1946, France, the UK, and the US, as well as Albania and other states, “signed Part III of the Agreement on Reparation from Germany, on the Establishment of an Inter-Allied Reparation Agency and on the Restitution of Monetary Gold”.69 Italy “adhered to the provisions of Part III of the Agreement by a Protocol signed in 1947”.70
To implement this agreement, France, the UK, and the US “appointed a Tripartite Commission to assist them in distributing the monetary gold”, while both Albania and Italy claimed the possession of the gold.71 Later, France, the UK, and the US “signed the Washington Agreement which determined to submit this issue to an arbitrator” in 1951.72 It was said that “if the monetary gold were determined to be in favour of Albania, they would deliver the gold to the UK in partial satisfaction of the judgment in the Corfu Channel case,73 unless Albania or Italy filed an application to the ICJ to decide which state had the priority over the monetary gold”.74
The Arbitral Award finally “decided the gold in 1943 belonged to Albania”.75
By submitting an application to the ICJ, Italy claimed that “three states should deliver to Italy the gold that might be due to Albania”; the other claim was that “Italy’s right to receive the gold must have priority over the UK’s claim to the gold”.76
Afterwards, Italy contended that the examination of the first submission in merits would “pass upon the
68
Case of the Monetary Gold Removed from Rome in 1943, Italy v. France, United Kingdom of Great Britain and Northern Ireland and United States of America, I.C.J. Rep 19, 25 (ICJ. 1954).
69
The Monetary Gold, at 25.
70 Ibid. 71 Ibid., at 25-6. 72 Ibid., at 26. 73
In the Corfu Channel case, Albania was adjudicated to make reparation to the United Kingdom. However, Albania declined to pay compensation.
74
The Monetary Gold, at 26.
75
Ibid.
76
international responsibility of Albania to Italy without Albania’s consent”.77
“The Washington Statement is not a sufficient basis upon which to found the jurisdiction of the Court to deal with the merits of the claim”.78 Additionally, it submitted that “the proceedings instituted by Italy in conformity with the Washington Statement are in reality directly against Albania, which is not a party to the suit”.79
The UK required the Court to find that “Italy’s application in the preliminary question did not conform or no longer conformed to the conditions and intentions of the Washington Statement” and to decide “Italy must be considered as not having made an application in accordance with the conditions laid down by the Statement”.80
The Court was conscious of the fact that the applicant challenged its jurisdiction, but it found that “the Statute or Rules of the Court did not prohibit the applicant to raise a preliminary objection”.81
It further observed that, to decide whether Italy was entitled to receive the gold in its first submission, it was necessary to determine “the lawful or unlawful character of certain actions of Albania” or the “international responsibility of Albania”.82
Without Albania’s consent, the Court “cannot decide such a dispute”.83 Otherwise, it would “run counter to a well-established principle of international law that the Court can only exercise jurisdiction over a State with its consent”.84
Within the meaning of Article 62 under the ICJ Statute, the Court intended to clarify that Albania had legal interests in this case and might have applied to intervene, and the proceedings may continue. Notwithstanding, the case of Albania appears to be different as a third State since the Court was even unable to adjudicate the pending dispute. Therefore, the Court concluded that “in the present case, Albania’s legal interests would not only be affected by a decision, but would form the very subject-matter of the decision. In such a case, the Statute cannot be regarded, by implication, as authorizing proceedings to be continued in the absence of Albania”.85
Though “Italy and the three respondent states have conferred jurisdiction upon the Court, it cannot exercise this jurisdiction to adjudicate on the first claim submitted by Italy. Regarding the second application, the Court found that this claim was dependent upon its decision on Italy’s first claim.86
77 Ibid. 78 Ibid., at 27. 79 Ibid. 80 Ibid. 81 Ibid., at 29. 82 Ibid., at 32. 83 Ibid. 84 Ibid. 85 Ibid. 86 Ibid., at 33.
Given it cannot exercise jurisdiction over the first claim, the Court “must refrain from examining the question of priority between Italy and the UK”.87
2.2.2.2 Reflections on the ICJ’s reasoning in the Monetary Gold case
First, it is suggested that a third State’s legal interests and rights form “the very subject matter” of the case. They are out of the jurisdictional scope of the Court, since the ICJ is only requested to address the rights and obligations of two principal parties. due to lack of the “very subject matter” of the pending dispute in question，the Court’s jurisdiction ratione personae over absent third State cannot be exercised. Peter Tzeng considers the Court’s way as “the characterization approach”, “where the court or tribunal must characterize the dispute as one relating more to the participating States or the absent State”.88
Second, the Court is required to identify whether the real dispute between parties exists—that is, the real subject matter of that pending dispute. The Court must ensure that both claimant and respondent States have consented to the Court’s exercise of jurisdiction since the beginning of the dispute, in accordance with maxim “nemo dat quod non habet: states that have consented to the Court’s jurisdiction cannot authorize it to rule on the legal position of a state not before the Court,” as indicated by Jörg Kammerhofer and André de Hoogh.89 The Monetary Gold case, like what the ICJ has summarized in Nauru, further manifests a logical sequence in the identification of a real dispute. It is observed that “in the latter case (the Monetary Gold case), the determination of Albania’s responsibility was a prerequisite for a decision to be taken on Italy’s claims”.90 Additionally, “in the Monetary Gold case the link between, on the one hand, the necessary findings regarding Albania's alleged responsibility and, on the other, the decision requested of the Court regarding the allocation of the gold, was not purely temporal but also logical”.91
Such a reasoning constitutes “the logic-based approach” elaborated by Peter Tzeng, “where the court or tribunal must determine the logical relationship between the exercise of jurisdiction over the participating State and the exercise of jurisdiction over the absent State”.92
Specifically, whereas the first dispute (the real dispute) is between one of the parties and an absent third State, the second dispute is the pending dispute between the two original litigants. Without consent from the original parties in the proceedings to decide the first dispute logically,
87
Ibid., at 34.
88
Tzeng, “The Implicated Issue Problem,” 460.
89
Kammerhofer and de Hoogh, “All Things to All People?” 975.
90
Case concerning Certain Phosphate Lands in Nauru, Nauru v. Australia, I.C.J. Rep 240, 261, para. 55 (ICJ. 1992)
91
Nauru v. Australia, at 261, para. 55.
92
it is not possible to deal with a pending dispute before the Court. Therefore, the ICJ cannot have jurisdiction ratione materiae over the dispute submitted by the principal parties before it.
Third, in the Monetary Gold case, the Court did not declare that it had no jurisdiction, but said it “cannot exercise the jurisdiction”.93
Robert Kolb indicated that “the Court was seeking to avoid the introduction of a back-door form of compulsory jurisdiction”.94
To be noted, the court’s decision that the legal interests and rights of an absent third State would form the “very subject matter” of the case relates to the provision of “an interest of legal nature” within the meaning of Article 62 of the ICJ’s Statute.95 According to Karel Wellens, either the procedure of intervention or the Monetary Gold principle is ascribed to a type of “direct third-party participation” in international adjudication.96 In fact, both the rule enshrined in the Monetary Gold case and Article 62 contain “affected” legal interests of a third State, but the extent and scope are different—the former becomes broader so that the Court cannot exercise its jurisdiction without the presence of a third State; alternatively, the latter is narrower, so the proceedings continue with the implication of absent third States. Last but not the least, the Court in the Monetary Gold case observed that Article 59 of the Statute was so insufficient as to be applicable even if the decision was only binding upon the applicant and respondent states. Article 59 postulates that the Court was “at least able to render a binding decision,” but the Court could not give such a decision on that issue without the consent of an absent third State or the settlement of the real dispute.97 Likewise, Natalie Klein also emphasizes that “it is unrealistic to expect Article 59 to serve as a blanket protection of third States’ interests”.98 James Crawford admitted as well that “the terms of Article 59 of the Statute alone may be insufficient to ensure protection in all cases”.99
In short, the Monetary Gold case reflects the limit of the Court’s jurisdiction in addressing of a mixed dispute at the early stage of the ICJ, but debates on this issue within the Court have not yet ended. The jurisprudence of the Monetary Gold case has
93
The Monetary Gold, at 33.
94
Kolb, The International Court of Justice, p. 568.
95
“The Statute of the International Court of Justice,” International Court of Justice, accessed October 16, 2018, https://www.icj-cij.org/en/statute. Article 62 of the ICJ Statute provides that: l. Should a state consider that it has an interest of a legal nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted to intervene. 2. It shall be for the Court to decide upon this request. The legal interest of a third State has the same meaning as the interest of a legal nature under Article 62 of the Statute.
96
Karel Wellens, “The International Court of Justice, back to the Future: Keeping the Dream Alive,” in International Law in Silver Perspective: Challenges Ahead, ed. Karel Wellens (Leiden. Netherlands: Brill Nijhoff, 2015), 186.
97
The Monetary Gold, at 33.
98
Klein, “Multilateral Disputes and the Doctrine of Necessary Parties,” 327.
99
been repeatedly examined in a series of cases decided by a court or tribunal and will be elaborately illustrated below.
2.2.2.3 The concurrent involvement of jurisdiction and admissibility in the Monetary Gold case
The preceding part of this section gives an impression that this case is merely confined to the jurisdiction of the Court. A further question would be whether this case is also involved in the admissibility of an applicant State’s claim. The Court in Oil Platforms explicitly states that “objections to admissibility normally take the form of an assertion that, even if the Court has jurisdiction and the facts stated by the applicant State are assumed to be correct, nonetheless there are reasons why the Court should not proceed to an examination of the merits”.100
Therefore, “it may proceed to an examination of the merits only when it finds the application and submissions admissible,” as illuminated by Chinese Society of International Law.101 Filippo Fontanelli also points out that “jurisdictional objections challenge the scope of the tribunal’s mandate over certain categories of disputes”, whereas “admissibility objections refer to defects of the specific claim or claimant”.102
In the Monetary Gold case, the Court at face value only deals with the consent of an absent third State to the exercise of the Court’s jurisdiction. Nonetheless, Italy’s claim is simultaneously inadmissible, as the claim is not against the UK’s legal responsibility but Albania’s, which goes beyond Italy’s application before the Court. As a result, the Monetary Gold case concurrently considers issues relating to jurisdiction and admissibility. The discussion above focuses on jurisprudence in the Monetary Gold case; international case law indicates that the ICJ’s legal reasoning has been developed in an evolutionary way. The next section will examine more cases and further illustrate the Monetary Gold case’s impact on international dispute settlement. 2.3 The evolution of the Monetary Gold principle in the international adjudication
In order to illustrate the evolutionary process of the Monetary Gold principle, this section will be divided into three parts. As the logical sequence of two disputes in a mixed dispute constitutes the linchpin for applying this principle, this section will begin by discussing two norms that have been touched upon in brief, i.e., “simultaneous” as well as “not purely temporal but also logic”. Afterwards, this part will examine the
100
Case concerning Oil Platforms, Iran v. United States of America, I.C.J. Rep 161, at 177, para. 29 (ICJ. 2003).
101
Chinese Society of International Law, “The South China Sea Arbitration Awards,” 398.
102
operation of the Monetary Gold principle, in order to showcase the identification of a real dispute’s subject matter in accordance with this principle. In the second part, it concerns the identification of the subject matter of a real dispute directly involving absent third States as required by the Monetary Gold principle. The final part involves the identification of the subject matter of a mixed dispute when the real dispute and a superficial dispute exist without the implication of absent third parties, based on the Monetary Gold Principle.
2.3.1 The requirements in the evolution of the Monetary Gold principle
In Nauru and East Timor, the Monetary Gold case was interpreted as follows: the determination of the international responsibility of a third State should be the prerequisite or basis to determine the international responsibility of one of parties to the dispute.103 A simultaneous determination “would not be precluded by the Monetary Gold decision.”104 The link between the findings on the claim of a third State and the requested judgment was not “purely temporal but also logical.”105
In the Larsen v. Hawaii Kingdom Arbitration, the Tribunal observed that “as the International Court of Justice explained in the Monetary Gold case, an international tribunal may not exercise jurisdiction over a State unless that State has given its consent to the exercise of jurisdiction. That rule applies with at least as much force to the exercise of jurisdiction in international Arbitral proceedings”.106
The Arbitral Award not only implicates a superficial dispute between Mr. Larsen and the Hawaiian Kingdom, but entails another dispute between Mr. Larsen and the United States due to the responsibility of the United States. By extension, since two disputes are integrated into one mixed dispute holistically, terms like “prerequisite” or “basis” offer a more specified manifestation of the inherent sequence between the dispute implicating an absent third State and the pending dispute. As Peter Tzeng remarks, “there is no question that courts and tribunals consider the ‘prerequisite determination’ test to be determinative on whether they can exercise jurisdiction over a dispute”.107
However, not all judges accede to this reasoning adopted by the Court, and their diverging views are primarily expressed with regard to the extent to which the rights
103
Nauru v. Australia, at 55. Case concerning East Timor, Portugal v. Australia, I.C.J. Rep 90, 33-8 (ICJ. 1985).
104 Nauru v. Australia, at 55. 105
Ibid.
106
Larsen v. Hawaii Kingdom, No. 1999-01, 32-3, para.11.17 (PCA. 2001). The Tribunal continued to declare that, “while it is the consent of the parties which brings the arbitration Tribunal into existence, such a Tribunal, particularly one conducted under the auspices of the Permanent Court of Arbitration, operates within the general confines of public international law and, like the International Court, cannot exercise jurisdiction over a State which is not a party to its proceedings”.
107
and interests of a third State in absentia are affected. In Nauru, due to the Trusteeship Agreement to which three States (the United Kingdom, New Zealand, and Australia) are parties, Judge Jennings observed that the Court would “unavoidably and simultaneously” be deciding “legal interests of those two other States”.108
Judge Ago also stated that the Court’s decision would “equally and inevitably affect the interests” of third States in absentia.109 A “simultaneous” or “equal” determination is sufficient to deprive the Court of its jurisdiction. Judge Schwebel considered that the decisive matter in the Monetary Gold case was “whether the determination of the legal rights of the present party effectively determines the legal rights of the absent party”.110
But, the opinion per se seems not to clearly define the scope of “effectively” and remains to be inexplicit. In concurrence with the Court’ ruling, Judge Shahabuddeen said, “what was involved was a judicial determination purporting to produce legal effects for the absent Party, as was visualized in the Monetaly Gold case, and not merely an implication in the sense of extended consequence of the reasoning of the Court”.111
In the East Timor case, in opposition to applying the Monetary Gold decision, Judge Weeramantry warned that, so as to undertake “the judicial duty to decide the cases brought before it within its jurisdictional competence”, the Court had to take great caution to avoid the abuse of the Monetary Gold case.112
In spite of varying views above, as argued by Robert Kolb, the Court “requires that the effect on the third State’s rights must be a powerful one” and sets up a high and stringent threshold to adopt this principle.113 Such a “logic or prerequisite” norm flows from seeking balance between the proper exercise of judicial duty of a court or tribunal and the role of the consent of an absent third State. Moreover, the logical sequence in a mixed dispute —i.e., the real dispute determines a submitted dispute at face value—is of great essence to resolve that particular dispute.
2.3.2 The identification of the subject matter of a real dispute directly involving a third State in accordance with the Monetary Gold principle
In fact, previous observations have implicitly made out the applicable scope of the Monetary Gold principle. For one thing, it is a dispute with the direct participation of an absent third State that necessitates the application of the Monetary Gold principle. For another, it is a dispute incidental to the submitted dispute before third-party litigation
108
Nauru v. Australia, Dissenting opinion of President Jennings, at 301-2.
109
Ibid., Dissenting opinion of Judge Ago, at 328.
110
Ibid., Dissenting opinion of Judge Schwebel, at 331.
111
Ibid., Separate opinion of Judge Shahabuddeen, at 296.
112
Portugal v. Australia, Dissenting opinion of Judge Weeramantry, at 158-9.
113
bodies that requires the invocation of the Monetary Gold principle to identify the real subject matter. Whether this principle may be applicable or not has been examined in the ICJ and arbitral proceedings covering different fields of international law.
2.3.2.1 The Monetary Gold principle and cases concerning international responsibility due to international wrongful acts
If the act committed by one of parties to the dispute hinges on the international legal responsibility of a third State which is not a party to the proceedings, the very subject matter of the dispute becomes the international wrongful act commissioned by a third State in the proceedings. In Nicaragua v. U.S., the United States claimed the rights and interests of El Salvador, Costa Rica, and Honduras formed the very subject matter of the dispute and invoked the Monetary Gold decision to make Nicaragua’s claim inadmissible.114 The US’ deterrence against Nicaragua was acting in collective self-defence of three States” and cannot be insularly addressed. 115
Nevertheless, the Court found that El Salvador’s affected rights and interests merely led to it seeking intervention and did not become the very subject matter of the decision.116 In Nauru, the Court rejected its application of the Monetary Gold principle. In East Timor, the Court recognized that “the very subject-matter of the Court’s decision would necessarily be a determination whether it (Indonesia) could or could not have acquired the power to enter into treaties on behalf of East Timor relating to the resources of its continental shelf”.117
So, this principle was applicable. In DRC v. Uganda, the Court said, “the interests of Rwanda clearly do not constitute ‘the very subject-matter’ of the decision to be rendered by the Court on the DRC’s claims against Uganda, nor is the determination of Rwanda’s responsibility a prerequisite for such a decision”.118
In Larsen v. Hawaiian Kingdom, the Tribunal considered that the determination on the responsibility of the United States would be a prerequisite to adjudicate the responsibility of the Hawaiian Kingdom.119 In Marshall Islands, the Court declared the nonexistence of a dispute, without expressing its view regarding jurisdiction and admissibility in the claim that other States as parties to the Treaty on the Non-Proliferation of Nuclear Weapons and other affected States were absent in the proceedings.120 Judge Xue suggested that “these
114
Case concerning Military and Paramilitary Activities In and Against Nicaragua, Nicaragua v. United States of America, I.C.J. Rep 392, 430, para. 86 (ICJ. 1984).
115
Nicaragua v. United States of America, at 430-1, para. 87.
116 Ibid., at 431, para. 88. 117
Portugal v. Australia, at 102, para. 28.
118
Case concerning Armed Activities on the Territory of the Congo, Democratic Republic of the Congo v. Uganda, Judgment, I.C.J. Rep 168, 238, para. 204 (ICJ. 2005).
119
Larsen v. Hawaii Kingdom, at 32-3, para.11.17.
120
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, Marshall Islands v. Pakistan, Counter-Memorial of Pakistan on Questions of Jurisdiction and/or Admissibility, paras. 7.23-7.33, 7.70-8.86 (ICJ. 2015).
objections deserve an immediate consideration of the Court at the preliminary stage, as the answer to them would have a direct effect on the jurisdiction of the Court and the admissibility of the Application”.121
Judge Crawford indicated that, “in the present case, Monetary Gold may well impose limits on the consequences that can be drawn from the Respondent’s conduct, if indeed it is held to involve a breach of international law. But precisely what those limits are will depend on the ground of decision”.122
In M/V “Norstar”, Italy contested that Spain’s execution of Italy’s request for the seizure of the M/V “Norstar” based on the 1959 Strasbourg Convention formed the very subject matter of Panama’s submission, and the Monetary Gold principle prevents the International Tribunal for the Law of the Sea (ITLOS) from exercising jurisdiction ratione personae.123 The Tribunal considered that Spain’s seizure was incidental to Italy’s conduct of order and authorization and should be examined separately.124
Consequently, Italy’s legal interests remained to be the very subject matter of this case and the Monetary Gold principle was not an obstacle to debar the Tribunal’s jurisdiction.125 Nonetheless, with regard to the nature of Spain’s conduct, the Tribunal indeed concluded that “the present case, which involves the action of more than one State, fits into a situation of aid or assistance of a State in the alleged commission of an internationally wrongful act by another State”.126
Just as Filippo Fontanelli comments, “it is difficult to say that the position of Spain is not prejudged by the Norstar precedent, which will have been decided on the merits”.127
To be noted, there are some cases involving international wrongful acts of international organizations that are regarded by respondent States as absent third parties within the meaning of the Monetary Gold principle. In Legality of Use of Force, some respondents, like Portugal and France, argued that international responsibility arising out of military air strikes should be attributed to the North Atlantic Treaty Organization (NATO) and UN instead of member States.128 However, the Court did not respond to these objections
121
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, Marshall Islands v. India, I.C.J. Rep 255, Declaration of Judge Xue, 444, paras. 9-11 (ICJ. 2016). Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, Marshall Islands v. Pakistan, I.C.J. Rep 552, Declaration of Judge Xue, 736, paras. 9-11 (ICJ. 2016). Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, Marshall Islands v. United Kingdom, I.C.J. Rep 833, Declaration of Judge Xue, p. 1032, paras. 9-11 (ICJ. 2016).
122
Marshall Islands v. India, Dissenting opinion of Judge Crawford, at 525-6, paras. 29-30. Marshall Islands v. Pakistan, Dissenting opinion of Judge Crawford, at 806-7, paras. 29-30. Marshall Islands v. United Kingdom, Dissenting opinion of Judge Crawford, at 1106-7, paras. 32-3.
123
The M/V “Norstar” Case, Panama v. Italy, Case No. 25, Preliminary objections, 36-7, paras. 144-6 (ITLOS. 2016).
124
Panama v. Italy, at 43-4, paras. 171-5.
125
Ibid., at 36-7, paras. 144-6.
126
Ibid., at 43-4, paras. 171-5.
127
Fontanelli, “Reflections on the Indispensable Party Principle,” 125.
128
Case concerning Legality of Use of Force, Serbia and Montenegro v. Portugal, Preliminary Objections of The Portuguese Republic, 43, paras. 142-4 (ICJ. 2000). Legality of Use of Force (Serbia and Montenegro v. France), Preliminary Objections of The French Republic, 15-8, paras. 29-47 (ICJ. 2000).
and left them unanswered.129 In the Interim Accord case, the Court observed that rights and obligations of NATO and its member States other than those of Greece were “independent” of the present case, and “the assessment of their responsibility was not a prerequisite for the determination of the responsibility” of Greece.130
Therefore, NATO and its member States were not indispensable third parties and the present dispute was only concerned with whether Greece fulfilled its obligations under the Interim Accord.131
In cases of international responsibility, it is common for the respondent and absent third States or international organizations to commit a single international wrongful act against the applicant. Such a form of international responsibility, as defined by André Nollkaemper, is “shared responsibility”.132
In light of the ICJ’s international case law, He summarizes three scenarios where the Monetary Gold principle may be invoked, but showed negative attitudes regarding its application. Firstly, the Monetary Gold principle “does not prevent the Court from exercising jurisdiction in case of two concurrent independent wrongful acts”.133
Secondly, “the Court also has excluded from the scope of the Monetary Gold rule cases of double attribution, that is: responsibility arising out of an act of a joint organ that can be attributed to two or more states”.134
Thirdly, since the ICJ’s jurisdiction is merely based on State consent, “the Court by definition cannot determine the legal position of such organizations, and on that basis the Monetary Gold rule does not seem to apply”.135
In addition, in Croatia v. Serbia, the Court asserted that the Monetary Gold principle “has no application to a State which no longer exists, as is the case with the SFRY, since such a State no longer possesses any rights and is incapable of giving or withholding consent to the jurisdiction of the Court”.136
129
Palchetti, “Litigating Member State Responsibility”, 469. Palchetti, “The Monetary Gold Principle,” 179.
130
Application of the Interim Accord of 13 September 1995, The Former Yugoslav Republic of Macedonia v. Greece, I.C.J Rep 644, 660-1, para. 43 (ICJ. 2011).
131
The Interim Accord, at 660-1, paras. 43-4.
132
André Nollkaemper, “Shared Responsibility in International Law: A Conceptual Framework,” Michigan Journal of International Law 34, Issue 2 (2013): 366-8. Shared responsibility has four features: “First, the concept of shared responsibility refers to the responsibility of multiple actors including States, international organizations, multinational corporations and individuals”; “Second, the term refers to the responsibility of multiple actors for their contribution to a single harmful outcome”; “Third, the term shared responsibility strictu sensu refers to situations where the contributions of each individual cannot be attributed to them based on causation”; “Four, the responsibility of two or more actors for their contribution to a particular outcome is distributed to them separately, rather than resting on them collectively”.
133
André Nollkaemper, “Issues of Shared Responsibility before the International Court of Justice,” in Evolving Principles of International Law: Studies in Honour of Karel C. Wellens, ed. Eva Rieter and Henri Waele (Leiden, Netherlands: Brill Nijhoff, 2011), 212.
134 Nollkaemper, “Issues of Shared Responsibility,” 213. 135
Ibid., 218. Similar literature also see: Nollkaemper, “Concerted Adjudication,” 819-20. Palchetti, “Litigating Member State Responsibility,” 480. Palchetti, “The Monetary Gold Principle,” 190. Cedric Ryngaert, “The Responsibility of Member States of International Organizations: Concluding Observations,” International Organizations Law Review 12, Issue 2 (2015): 514.`
136
Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Croatia v. Serbia, I.C.J Rep 412, 454, para. 116 (ICJ. 2008). Palchetti, “Litigating Member State Responsibility,” 474-5. Palchetti, “The Monetary Gold Principle,” 184.
2.3.2.2 The Monetary Gold principle and cases involving territorial sovereignty and maritime delimitation
In the delimitation of land boundaries, respondent States usually request that the Court take care of its competence to adjudicate the dispute before it, to the extent that the land boundary to be determined may encroach upon the rights and interests of a third State which is not party to the proceedings, and the Monetary Gold principle may debar the exercise of the Court’s jurisdiction. Nevertheless, the Court has shown negative attitudes toward such arguments. In the Burkina Faso/Mali case, the Special Chamber considered that the rights of Niger as a third State were “in any event” afforded protection by Article 59 of the Statute. 137 In the Libya/Chad case, the Court determined the eastern end-point of the frontier would “lie on the boundary of the Sudan”; to the west, the Court was “not asked to determine the tripoint Libya-Niger-Chad” and its decision would “not be opposable to Niger as regards the course of that boundary’s frontiers”.138
In the Cameroon v. Nigeria case, the Court observed that, “the request to specify the frontier between Cameroon and Nigeria from Lake Chad to the sea does not imply that the (Cameroon-Nigeria-Chad) tripoint could be moved away from the line constituting the Cameroon-Chad boundary”.139 Overall, the Court did not find that the legal interests of Chad as an absent third State would be affected by the Court’s decision on the delimitation of a land boundary between two parties in the Lake of Chad; thus, the Monetary Gold principle did not debar the jurisdiction ratione personae of the Court and Nigera’s objection is inadmissible.
In maritime delimitation cases, based on the Monetary Gold case, the Court made clear in the Nicaragua v. Honduras case, it “will not rule on an issue when in order to do so the rights of a third party that is not before it, have first to be determined”.140
It also laid out some previous cases that illustrated the equivalent rationale, including Tunisia/Libya, Libya/Malta, El Salvador/Honduras, and Cameroon v. Nigeria.141 Additionally, as was shown in Romania v. Ukraine, the Eritrea/Yemen arbitration, and the Barbados v. Trinidad and Tobago arbitration, the Monetary Gold principle had continued to be applied as long as the Court’s decision potentially touched upon the rights and interests
137
Burkina Faso/Mali, at 577, para. 46.
138
Case concerning the Territorial Dispute, Libyan Arab Jamahiriya/Chad, I.C.J Rep 6, 33, para. 63 (ICJ. 1994).
139 Case concerning Land and Maritime Boundary between Cameroon and Nigeria, Cameroon v. Nigeria: Equatorial
Guinea Intervening, I.C.J. Rep 275, 312, para. 79 (ICJ. 1998).
140
Nicaragua v. Honduras, at 756, paras. 312.
141
Ibid. Case concerning the Continental Shelf, Tunisia/Libyan Arab Jamahiriya, I.C.J. Rep 18, 91, para. 130 (ICJ. 1982). Case concerning Continental Shelf, Libyan Arab Jamahiriya/Malta, I.C.J. Rep 3, 27 (ICJ. 1984). Case concerning Continental Shelf, Libyan Arab Jamahiriya/Malta, I.C.J. Rep 13, 26-28, paras. 21-3 (ICJ. 1985). Case concerning the Land and Maritime Boundary between Cameroon and Nigeria, Cameroon v. Nigeria: Equatorial Guinea Intervening, I.C.J. Rep 303, 421, 424, 448, paras. 238, 245, 307 (ICJ. 2002).
of third States.142 As for that undefined part, rights and interests of third States constitute the very subject matter of the dispute before the court so that the delimitation task is unable to be fulfilled.
In addition, on September 28, 2018, Palestine instituted proceedings against the United States before the ICJ, claiming that moving the U.S. Embassy in Israel to Jerusalem violated a series of articles in the VCDR.143 Particularly, Article 3 of VCDR provides that “the diplomatic mission of a sending State must be established on the territory of the receiving State”.144
As a sovereign State, Palestine considered Jerusalem to be its territory, and that America’s action amounted to an acknowledgment of Israel’s territorial sovereignty over Jerusalem and a rejection of Palestine’s. In the end, the Court is essentially requested to determine the territorial sovereignty over Jerusalem without the consent of Israel as an absent third State. Israel’s legal rights and interests may form the very subject matter of the case and hinder the Tribunal from exercising its jurisdiction ratione personae.145 Thus, the Monetary Gold principle may be applicable. On the other hand, Palestine may have formulated a territorial sovereignty dispute regarding Jerusalem as a dispute regarding the interpretation and application of VCDR. Given that the former constitutes the basis and prerequisite to decide the latter, the Court may be deprived of the jurisdiction ratione materiae as well. Additionally, Palestine’s application may also be recognized as inadmissible. Therefore, it is the Monetary Gold principle that may be applied in the proceedings. How the Court may deal with a potential jurisdictional hurdle created by the Monetary Gold principle remains to be seen.
2.3.2.3 The Monetary Gold principle and cases involving international investor-State arbitration and international criminal law
In international investor-State arbitration, the Monetary Gold principle has been referred to in the Chevron Corporation v. Ecudor case. The Tribunal acknowledged that this
142
Case concerning the Maritime Delimitation in the Black Sea, Romania v. Ukraine, I.C.J. Rep 61, 100, 131, paras. 112-4, 219. (ICJ. 2009). Case concerning the Territorial and Maritime Dispute, Nicaragua v. Colombia, I.C.J. Rep 624, 707, para. 228 (ICJ. 2012). Award of the Arbitral Tribunal in the Second Stage of the Proceedings between Eritrea and Yemen (Maritime Delimitation), Eritrea/Yemen, 22 RIAA 335, 366, para. 136 (1999). Award of the Arbitral Tribunal in the Matter of an Arbitration between Barbados and the Republic of Trinidad and Tobago, Barbados v. Trinidad and Tobago, 27 RIAA 147, 174, para. 86 (2006).
143
“The State of Palestine Institutes Proceedings against the United States of America,” International Court of Justice, accessed October 16, 2018, https://www.icj-cij.org/files/case-related/176/176-20180928-PRE-01-00-EN.pdf.
144
International Court of Justice, “The State of Palestine Institutes Proceedings.”
145
Marko Milanovic, “Palestine Sues the United States in the ICJ re Jerusalem Embassy,” EJIL:Talk!,September30, 2018, accessed October 16, 2018, https://www.ejiltalk.org/palestine-sues-the-united-states-in-the-icj-re-jerusalem-embassy/.
principle can be applicable “by analogy”, observing that “no arbitration tribunal has jurisdiction over any person unless they have consented”.146
Noam Zamir critically comments that individuals “do not possess the same status of international legal personality that states possess and they cannot incur the same general legal responsibility for violations of public international law”.147
Given such a decision is adhered to afterwards, it would help a respondent to refrain from the exercise of a tribunal’s jurisdiction, which may largely restrain the judicial capacity of investor-State arbitral tribunals. 148 Additionally, international criminal law may implicate the Monetary Gold principle regarding whether it will prohibit the International Criminal Court (ICC) from exercising jurisdiction over cases involving a non-party State or party State without consent to the ICC’s jurisdiction for the crime of aggression.149
In James Crawford’s view, “the ICC has jurisdiction over natural persons, not States” and its decision “would not determine any issue of state responsibility”.150
Accordingly, there will be no scope for the application of the Monetary Gold principle.151
2.3.2.4 A narrow reading of the Monetary Gold principle based on international case law when absent third States are directly implicated
Alexander Orakhelashvili highlights that “the doctrine of indispensable parties applied only in extreme cases where the interest of an absent State is so closely related to the subject-matter of a dispute that it makes it impossible to limit the adjudication to the rights and interests of the applicant and the respondent”.152
Regarding the direct implication of third parties, current case law recognizes that only absent States are qualified to debar jurisdiction ratione personae of an international court or tribunal, rather than international organizations and other individuals or private entities. Moreover, Tom Dannenbaum contends that “the ICJ’s “indispensable third party” rule has been applied narrowly”.153
Martins Paparinskis and André Nollkaemper also argue that a narrow reading of this principle is presented as far as shared responsibility is concerned.154 In addition, Judge Ajibola considers it as “a narrow interpretation if the Court is not to fall into the pit of shirking its duty to decide the case presented to it, as
146
Chevron Corporation and Texaco Petroleum Company v. Ecuador, 2009-23, 124, para. 4.61 (PCA. 2012).
147
Zamir, “The Applicability of the Monetary Gold principle,” 537.
148
Ibid., 537.
149
Ruys, “Justiciability, Complementarity and Immunity,” 24-5. O’Gorman and Sampford, “Aggression and Monetary Gold,” 48.
150
Crawford, “State Responsibility,” 668
151
Ruys, “Justiciability, Complementarity and Immunity”, 25-6. O’Gorman and Sampford, “Aggression and Monetary Gold,” 61-2. Crawford, “State Responsibility,” 668. Abass, “The International Criminal Court,” 382.
152
Orakhelashvili, “The Competence of the International Court of Justice,” 8.
153
Dannenbaum, “Politics, the Rule of Law,” 236.
154
Paparinskis, “Procedural Aspects of Shared Responsibility,” 300, 306-7, 316. Chinkin, “East Timor,” 219. Nollkaemper, “Concerted Adjudication”, 821.
between the parties before it.” 155 Noam Zamir holds the view that “the Monetary Gold
must be interpreted narrowly and such reliance on this principle will only occur in limited circumstances”.156
Paolo Palchetti indicateds that “on balance, this narrow reading of the Monetary Gold principle appears to be preferable”.157 Overall, it should be pointed out that the Monetary Gold principle is frequently considered but rarely invoked, in the event of absent third States’ direct participation.
To be concluded, when an absent third State is implicated in the proceedings, a mixed dispute will be on the table for an international court or tribunal to deal with. In the event that a dispute between a third State and one of parties to the proceedings determines other aspects of a mixed dispute on the whole, the interests of a third State would form the very subject matter of the decision. To fully exercise its competence over the dispute between States, an international court or tribunal commits itself to examining judicial obstacles or objections against its jurisdiction on the basis of State consent. In spite of wide-ranging international law fields involving the Monetary Gold principle, the strictly confined applicability gives rise to a side effect that a court or tribunal is not inclined to take the presence of third States into account on some occasions where this principle should be applicable. It is seemingly seen in the SCS Arbitration case and will be elaborated below.
2.3.3 The identification of the subject matter of a mixed dispute without implication of third States in accordance with the Monetary Gold Principle
One might propose another category in which the pending dispute before a court or tribunal does not reflect the real subject matter of that dispute; as a result, the existence of real and superficial disputes formulates a mixed dispute as a whole. The real dispute as the first dispute determines the pending dispute as the second dispute. This issue has been touched upon by the ICJ and arbitral tribunals under Article 287 and Annex VII of UNCLOS.
2.3.3.1 The Aegean Sea Continental Shelf case and the Malaysia/Singapore case
In the Aegean Sea Continental Shelf case, the Court observed that “any disputed delimitation of a boundary entails some determination of entitlement to be areas to be
155
Ajibola, “The International Court of Justice,” 102.
156
Zamir, “The Applicability of the Monetary Gold Principle,” 528.
157
delimited”.158
The dispute involving “the respective areas of continental shelf” made it “necessary to establish the boundary” between two States.159
It was further stated that “a dispute regarding entitlement and delimitation of areas of CS tends by very nature to be one relating to territorial status”.160 “The reason is that legally coastal State rights over the CS are both appurtenant to and directly derived from the State’s sovereignty over the territory abutting on that continental shelf”.161
Finally, “a dispute regarding those rights would, therefore, appear to be one which may be said to ‘relate’ to the territorial status of the coastal State,”162
and the coastal State was Greece, the dispute in essence fell into the reservation invoked by Turkey.163 In terms of the Monetary Gold principle, a pending dispute on the entitlement to CS is determined by the delimitation dispute between two States, and both entitlement and boundary delimitation disputes require the determination of the territorial sovereignty dispute between two States as the first. However, without consent from Turkey, the Court cannot exercise jurisdiction ratione materiae over the pending dispute before it. In Malaysia/Singapore, the Court decided that Pedra Branca/Pulau Batu Puteh belonged to Singapore, while Middle Rocks belonged to Singapore.164 However, with respect to the sovereignty of South Ledge as a low-tide elevation (LTE), the Court found this feature fell within the overlapping territorial waters respectively generated by Pedra Branca/Pulau Batu Puteh and Middle Rocks.165 Therefore, this requires the delineation of overlapping territorial waters of two States. However, the Court found it had no jurisdiction ratione materiae to address the sovereignty of South Ledge without consent from two parties.166 Here, based on the Monetary Gold principle, it is suggested that the delimitation dispute concerning territorial waters between two States constitutes the prerequisite to rule on the sovereignty dispute concerning South Ledge.
2.3.3.2 The Chagos Marine Protected Area (MPA) Arbitration and the Chagos Archipelago Advisory Opinion
Under Article 288(1) of UNCLOS, all listed judicial forums have jurisdiction in any dispute concerning the interpretation or application of the Convention. Nevertheless, the sovereignty dispute originally lay outside of UNCLOS. Under Section 3 of Part XV of UNCLOS, disputes concerning sea boundary delimitation, historic bays or titles,
158
Greece v. Turkey, at 35, para. 84.
159 Ibid., at 35-6, para. 85. 160 Ibid., at 36, para. 86 161 Ibid. 162 Ibid., at 36–7, paras. 86–9. 163 Ibid., at 37, para. 90. 164
Case concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge, Malaysia/Singapore, I.C.J Rep 12, 101, para. 297 (ICJ. 2018).
165
Malaysia/Singapore, at 101, para. 297.
166
military activities, etc., are able to be excluded from compulsory procedures by a State’s declaration. In the Chagos MPA Arbitration, Mauritius submitted a dispute concerning the interpretation or application of the concept of “coastal State. The Tribunal observed that the dispute concerning the term coastal State “was properly characterized as relating to land sovereignty over the Chagos Archipelago”.167
But it also states that “an issue of land sovereignty might be within the jurisdiction of a Part XV court or tribunal if it were genuinely ancillary to a dispute over a maritime boundary or a claim of historic title”.168
Besides, “a minor issue of territorial sovereignty could indeed be ancillary to a dispute concerning the interpretation or application of the Convention”.169
Therefore, the Tribunal asserted that the first dispute concerning sovereignty as the real dispute of the case determined the second dispute concerning the term “coastal State” and had no jurisdiction ratione materiae over the first and second submissions.170 The Tribunal’s approach is basically in accordance with the Monetary Gold principle. Nonetheless, it actually opened a backdoor for a court or tribunal to address a mixed dispute in which the dispute concerning the interpretation or application of the Convention constitutes a major issue but territorial sovereignty forms a minor issue and could be ancillary to the prior issue. Such an interpretation on the characterization of a mixed dispute and art. 298(1)(a) has caused some criticism from scholars.171
On 22 June 2017, the United Nations General Assembly (UNGA) passed a resolution to ask the ICJ to give an advisory opinion regarding the issue of separation of the Chagos Archipelago under Article 65 of the Statute in two aspects.172 This case concurrently involves two aspects which are composed of the function of decolonization of Mauritius discharged by the UNGA and potential legal consequences under international law due to the detachment of Chagos Archipelago from Mauritius.173 On the one hand, in some cases, advisory opinions relating to decolonization have been delivered by the Court. Therefore, the Court’s competence over the decolonization part mirrored by the pending case should be supported. On the other hand, in the Western Sahara Advisory Opinion, it was observed that “lack of consent might constitute a ground for declining to give the opinion requested if, in the circumstances of a given case, considerations of judicial
167
Chagos Marine Protected Area Arbitration, Mauritius v. United Kingdom, 2011-03, at 88, para. 212 (PCA. 2015).
168
Mauritius v. United Kingdom, at 89-90, para. 218.
169
Ibid., at 90, para. 221.
170
Ibid., at 93, para. 230.
171 Qu, “The Issue of Jurisdiction Over Mixed Disputes,” 47-9. Stefan Talmon, “The Chagos Marine Protected Area
Arbitration: Expansion of the Jurisdiction of UNCLOS Part XV Courts and Tribunals,” International & Comparative Law Quarterly 65, Issue 4 (2017): 933-4, 948-51.
172
“The General Assembly of the United Nations Requests an Advisory Opinion from the Court on the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965,” International Court of Justice, June 29, 2017, accessed September 14, 2018, https://www.icj-cij.org/files/case-related/169/169-20170629-PRE-01-00-EN.pdf.
173
propriety should oblige the Court to refuse an opinion”.174
Given “to give a reply would have the effect of circumventing the principle that a State is not obliged to allow its disputes to be submitted to judicial settlement without its consent, the powers of the Court under the discretion given to it by Article 65, paragraph 1, of the Statute, would afford sufficient legal means to ensure respect for the fundamental principle of consent to jurisdiction”.175
Consequently, the Court was asked to examine “whether there are compelling reasons for the Court’s declining to reply to the request”.176
The process of decolonization may entail a bilateral sovereignty dispute as regards the Chagos Archipelago; in the meantime, the United Kingdom opposes submitting it to an international court or tribunal, since this dispute can only be settled with the consent of two States. Regarding the issues involving sovereignty, the sovereignty dispute as the first matter determines the dispute regarding the decolonization at face value as the second. This dispute can only be settled with the consent of two States and Mauritius’s failed attempt in the Chagos MPA arbitration consolidates such a stance. Just as Sienho Yee indicates, “the fact that fully answering the questions put to the Court would necessitate addressing the main or essential issues, in the bilateral dispute between Mauritius and the United Kingdom without the latter’s consent, and would be incompatible with the Court’s judicial character, is a compelling reason calling for the Court’s refusal to give the requested opinion on such issues”.177
According to the Advisory Opinion issued on 25 February 2019, the Court noted that the GA “has not sought the Court’s opinion to resolve a territorial dispute between two States”. 178
In addition, “the purpose of the request is for the GA to receive the Court’s assistance so that it may be guided in the discharge its functions relating to the decolonization of Mauritius”.179
Therefore, this case is not involved in the sovereignty dispute but only a dispute relating to the decolonization of Mauritius.It is meant that “the Court does not consider that to give the opinion requested would have the effect of circumventing the principle of consent by a State to the judicial settlement of its dispute with another States and cannot, in the exercise of its discretion, decline to give the
174
Western Sahara, at 24-5, para. 32.
175
Ibid., at 25, para. 33.
176
Ibid., at 17, para. 12.
177
Sienho Yee, “Notes on the International Court of Justice (Part 7)—The Upcoming Separation of the Chagos Archipelago Advisory Opinion: Between the Court’s Participation in the UN’s Work on Decolonization and the Consent Principle in International Dispute Settlement,” Chinese Journal of International Law 16, Issue 4 (2017): 635. Sienho Yee argues that, hese main or essential issues contain “the lawfulness of the detachment of the Chagos Archipelago from Mauritius and ultimately the validity of the detachment agreement”. Similar views can be seen in Dapo Akande and Antonios Tzanakopoulos, “Can the International Court of Justice Decide on the Chagos Islands Advisory Proceedings without the UK’s Consent?” EJIL: Talk!, June 27, 2017, accessed September 14, 2018, https://www.ejiltalk.org/can-the-international-court-of-justice-decide-on-the-chagos-islands-advisory-proce edings-without-the-uks-consent/.
178
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, 22, para. 86 (ICJ. 2019).
179
